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TMI Blog2008 (9) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... nation forwarded the representative samples to the Group. These were then examined in the presence of the appellant and their CHA. On examination, the description on the packages of the subject goods were found to be - (a) 3 Love Games, only of 40+ - 40+ Strippoker, 40+ Truth or Dare Cards, 40+Love Dice; (b) Love Dart Game; (c) Beer Shooter game; (d) Kama Sutra Memory - with funny sexy assignments (including Kamasutra postures in drawing); (e) Hanging long drinking glass; (f) Kamasutra, the game of love - passion game - how do I pamper her; etc. 3. The factual matrix has been reproduced from the impugned order. The representative samples, relating to item Nos. 1, 3 and 4 of the bill of entry, described the goods as Glass Games - small , Carton Games - big and Carton Games - small , respectively. These were found to contain certain cards, with instructions inscribed on these for performing certain acts/actions by the players when they drew the cards. Item No. 8 of the said bill of entry described the goods as Toys (Dart and Shooter Games) , which were found to contain two types of samples - Dart Game and Shooter Game. The Dart Game consisted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tell what you didn t like about the last porno film you watched; (xi) Fiddling - take her bra off without her having to take off an item of clothing (blindfolded); (xii) Tender lips - place her on the bed or on the ground. Ask her to Open her mouth a little. Now caress her lips and her tongue softly with your wet finger (blindfolded); (xiii) Forbidden fruit - she holds an apple (or another piece of fruit) under her chin (between her breasts is also allowed). He must now eat his forbidden fruit without it falling down (blindfold on); (xiv) Pet name - bare her belly. Write per names on her belly using either your finger or your tongue. If you do it right she should be able to guess the names (blindfold on); (xv) At your fingertips - place her on the bed, bare her back and caress it with your fingertips. While caressing her, whisper sweet words in her ear (blindfold on); (xvi) Kiss workout - lay her on the ground and perform press-ups over her. With each press-up you give her a kiss. Do not give in to your pain, show that you are a real man. She can decide when she s had enough (blindfold off); (xvii) Ear nibbling - gently nibble your partner s ear. Do some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lower authority held goods covered by item Nos. 1, 3 and 4 and part of item No. 8 as obscene and objectionable. Such goods were absolutely confiscated. Other goods were ordered to be released, subject to fulfilment of certain conditions. A penalty of Rs. 40,000/- was imposed on the appellant. The appeal is directed against these decisions of the lower authority. 8. In the grounds of appeal, the appellant have stated that the lower authority decided the case mechanically on surmises and conjectures; that he was confused about the terms obscenity , sensuous and sexually explicit used in the impugned order and failed to consider the true meaning and definition as given in the Oxford Dictionary; that the lower authority erred in holding the description of goods as vague/incomplete/inadequate; that the impugned order is based on personal conservative and orthodox outlook and not the outlook which can be generally accepted by the society; that the games are manufactured by international manufacturer who is supplying these games all over the world without any objection from any country and is not exclusively meant for India; that the imported goods were not intended to be sold to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be performed by the players of the cards. All this material, which have been lifted from the descriptions given on the representative samples of the imported goods are no doubt pieces of material evidence. I, therefore, do not have any hesitation in discarding the claim of the appellant that the show cause notice is devoid of supporting evidence. 12. The appellant, on the other hand, assert that in case the Department considered that the imported goods were obscene, then such assertion by the Department should have been backed by evidence in the form of expert opinion in the, notice itself. Further, the lis should have been resolved on the basis of an expert opinion and not by the lower authority himself. I have carefully considered these contentions. In answer to this, I wonder who could be considered an expert in matters relating to obscenity. Since the appellant made such assertion, they on being questioned were unable to answer this. The lower authority also posed this question on 29-1-2008 to the appellant during the course of the adjudication proceedings and asked the appellant to inform him whom they considered to be experts in this field. The appellant in response ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r decision are extracted as - ...In India, however, the responsibility of the decisions rests essentially on the Court. As laid down in both the decisions of this Court earlier referred to, the question whether a particular article or story or book is obscene or not does not all together depend on oral evidence, because it is the duty of the Court to ascertain whether the book or story or any passage or passages therein offend the provisions of section 292, I.P.C . In deciding the question of obscenity of any book, story or article the Court whose responsibility it is to adjudge the question may, if the court considers it necessary, rely to an extent on evidence and views of leading literary personage if available, for its own appreciation and assessment and for satisfaction of its own conscience. The decision of the Court must necessarily be on an objective assessment of the book or story or article as a whole and with particular references to the passages complained of in the book story or article. ... 15. As stated by the Supreme Court, in deciding the question of obscenity of any book, story or article, the Court whose responsibility it is to adjudge the question may, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Delhi High Court in the case of Maqbool Fida Husain v. Raj Kumar Pandey [2008 INDLAW - Del 426]. Also it would be fruitful to refer to the Supreme Court decision in Ajay Goswami (supra), a decision that has been relied upon by the appellant. 18. A book, pamphlet, paper, writing, drawing, painting, representation, figure or any object shall be deemed to be obscene if (i) it is lascivious; (ii) it appeals to the prurient interest; and (iii) it tends to deprave and corrupt persons who are likely to read or see it. In Samaresh Bose v. Amal Mitra, the Supreme Court while distinguishing between vulgarity and obscenity, held that vulgarity may arouse a sexual feeling of revulsion, disgust and even boredom but unlike pornography or obscenity do not have the tendency to corrupt or deprave minds of a person. The Supreme Court in another case observed that for the purpose of judging obscenity, firstly the judge should place himself in the position of the author in order to appreciate what the author really wishes to convey and thereafter place himself in the position of the reader of every age group in whose hands the book is likely to fall and then arrive at a dispassionate conclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and debase persons likely to come in contact with the impugned art. 19. Here I would like to state that the observations, opinions, comments or conclusions, which have been made, expressed or drawn by the various Courts, are in the context of art, literature, cinema or publications. These works of art, literature or cinema and of publication are works or publications by persons who have sought to disseminate their intellectual ideas, thoughts or expressions, through such media, and which may be unacceptable in the existing value system of the contemporary society. Such ideas, thoughts or expressions are no doubt essential for the progress of the society. However, some of these ideas, thoughts or expressions may be considered to be obscene by those persons who take upon themselves to be the moral guardians of the existing society. In propagating such ideas, thoughts or expressions, the commercial angle hardly ever shows. But in the case presently under consideration where the imported goods have been designed to exploit the carnal desires of human beings and the sale thereof is for shear profit-making, are these observations, opinions, comments or conclusions of the Courts in to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, 3 and 4 and part of item No. 8 obscene and others were not. Detailed reasoning has been given in respect of those found obscene. This itself speaks of the objectivity of the lower authority; (b) that similar goods are available in the market and that they should also be allowed import of such goods. They have drawn parallel to sale of Confidum and Crezendo by M/s. Hindustan Latex Ltd., sale of books and magazines such as Mind-blowing Sex and Cosmopolitan which have pictures/photographs depicting nudity and are available freely in shops like M/s. Crossword and have also referred to magazine India Today which published article where the cover page carried a picture of a couple almost in a compromising position with caption Exclusive Survey on sex and marriage in bed room with urban Indian couples . In this regard I have to state that the appellant has not specified identical cases, which were allowed clearances by the Customs. As regards the sale of Confidum and Crezendo by M/s. Hindustan Latex Ltd., the Madras High Court held these to be obscene but now the matter is pending for decision before the Supreme Court. In so far as the magazines that depict nudity, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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